Appendix: Request from the Governments of Belgium, Finland, Hungary, Mexico, the Republic of Korea and South Africa and the Permanent Observer Mission of Switzerland to the United Nations regarding the text prepared by the International Committee of the Red Cross on the mental element in the common law and civil law systems and on the concepts of mistake of fact and mistake of law in national and international law

2003 ◽  
pp. 487-498
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
Common Law ◽  
Civil Law ◽  
International Committee ◽  
Red Cross ◽  
The Common ◽  
Mental Element ◽  
The Republic

ICRC Privilege in Canada

2016 ◽  
Vol 53 ◽  
pp. 144-171 ◽  
Author(s):  
CRAIG BRANNAGAN ◽  
CHRISTOPHER WATERS
Keyword(s):  
International Law ◽  
Common Law ◽  
International Committee ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
The Common ◽  
Court Proceedings ◽  
Testimonial Privilege

AbstractThis article explores whether the International Committee of the Red Cross (ICRC) enjoys testimonial privilege before Canadian courts. The authors argue that there is strong evidence to suggest that customary international law requires that the ICRC be granted a privilege not to testify or disclose confidential information in domestic court proceedings. Such a privilege, they argue, is entailed by the ICRC’s mandate to engage in international humanitarian law protection activities using confidential means. Given that customary international law forms part of the common law in Canada, the authors argue that this privilege should be recognized by Canadian courts despite its potentially uneasy fit with traditional Canadian evidence law.

The Common Law in Lesotho

1969 ◽  
Vol 13 (3) ◽  
pp. 127-144
Author(s):  
Sebastian Poulter
Keyword(s):  
South Africa ◽  
East Africa ◽  
Southern Africa ◽  
Legal System ◽  
Common Law ◽  
The Subject ◽  
The Common ◽  
English Law ◽  
The Republic

Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

scholarly journals Oral Law in Litigation in South Africa: An Evidential Nightmare?

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Court System ◽  
The Status ◽  
Customary Laws ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

scholarly journals THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD – HAS THE BRIDGE BEEN CROSSED BETWEEN THEORY AND PRACTICE: MAURITIUS AND SOUTH AFRICA?

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
Theory And Practice ◽  
Best Interests ◽  
Vulnerable Group ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations ◽  
The Republic

On 20 November 1989 the United Nations adopted a treaty, the Convention on the Rights of the Child (hereinafter “the Convention”), which specifically focuses on a particularly vulnerable group in society at large – children (1577 UNTS 3 (1989) 28 ILM 1456). That the international community ratified this treaty so soon after its proposal is indicative of the fact that it considered this treaty as one of major importance. In accordance with Article 49 the Convention took effect and became international law on 2 September 1990. The Republic of Mauritius was quick to respond to the appeal and became a signatory in 1990. South Africa followed suit and became asignatory on 16 June 1995. The response from both these Republics is admirable, but one has to investigate how these two nations have succeeded in giving effect to their obligations as signatories. The actual provisions in the respective countries’ national law will indicate the measure of true compliance with the Convention. In this note I shall confine my discussion to article 3 and article 4 of theConvention and more specifically to the consideration of the best interests of a child where his or her parents are divorcing or separating.

The Need for a New Paradigm in International Law to Provide International Protection

2021 ◽  
pp. 1-44
Author(s):  
Jeremy Julian Sarkin
Keyword(s):  
United Nations ◽  
International Law ◽  
Working Group ◽  
International Committee ◽  
Red Cross ◽  
The European Union ◽  
New Paradigm ◽  
Human Rights Abuses ◽  
The United Nations ◽  
Set Up

Abstract Too little is provided, not only in international law, but also by the United Nations, for victims around the world. This article therefore argues that a new paradigm is needed. It uses the conflict in Syria since 2011, specifically focusing on how enforced disappearances and arbitrary detentions have been used, to examine these questions. It has been reported that at least 150,000 people have been affected by these practices, but the number may be as high as a million. Because the state has used these practices methodically, they amount to a widespread and systemic attack on the civilian population and, therefore, to crimes against humanity. While the Syrian regime is primarily responsible, non-state actors have also been committing these types of crimes. The article discusses the general processes that have been set up to deal with the conflict in international law and by the United Nations in places like Syria. It finds that very little has been done to end the conflict in Syria, other than mediation. The article then reviews the international processes dealing with disappearances and detentions in Syria that families can report to, and the role these institutions have played so far. It again finds that very little has been achieved. The article also examines other countries where processes have been set up to deal with missing and disappeared persons, such as Armenia, Azerbaijan, Bosnia-Herzegovina, Cyprus, and Georgia, to learn the lessons from these past processes for the Syrian situation. It is argued that, generally when mass atrocities occur, the UN on rare occasions will create an accountability process, but never creates a process that focuses on the needs of victims: finding their loved ones, getting them released from custody if they are alive, or finding the truth about what happened to them and where their remains are. The article therefore argues that a new mechanism is needed for Syria (but also for other places) to get people released, and to find information on others whose whereabouts are unknown due to the conflict and/or the mass human rights abuses. It contends that the mechanism could be set up by the UN, and if not, by a regional actor such as the European Union, or by several states. It is reasoned that the mechanism ought to have a Board made up of a representative each from the International Committee of the Red Cross (ICRC), the International Commission on Missing Persons (ICMP), the UN Working Group on Enforced or Involuntary Disappearances (WGEID), the UN Working Group on Arbitrary Detentions (WGAD) and a Syrian organisation, elected each year.

scholarly journals Inheritance Rights for Posthumously Procreated Children: A Growing Challenge for the Law

2018 ◽  
Vol 21 ◽  
pp. 1-30
Author(s):  
Frederick Noel Zaal ◽  
Justin D'Almaine
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Artificial Reproduction ◽  
Cryogenic Technology ◽  
Laboratory Conditions ◽  
The Common ◽  
The Law ◽  
The Republic ◽  
Human Gametes

Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.

scholarly journals Muslim personal law and the meaning of "law" in the South African and Indian constitutions

2017 ◽  
Vol 2 (2) ◽  
pp. 50
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Muslim Population ◽  
The Common ◽  
The Republic ◽  
Law And Legislation ◽  
Personal Law

The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 24 India: Indian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
Member State ◽  
International Law ◽  
Common Law ◽  
Primary Source ◽  
Case Law ◽  
Private International Law ◽  
Rules And Principles ◽  
The Common ◽  
The Hague ◽  
The Republic

This chapter provides comments on the Hague Principles from the perspective of Indian private international law of contract. The Republic of India inherited the English common law, also in the field of private international law. Case law is the primary source of Indian private international law of contract. Rooted in the common law tradition, the courts would certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of private international law. In any event, the Hague Principles were adopted on March 19, 2015, by consensus between all Member States of the Hague Conference on Private International Law, including India, which has been a Member State since March 13, 2008. The chapter then demonstrates that the Hague Principles have real potential to assist in the interpretation, supplementation, and development of Indian private international law of contract.

scholarly journals IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Michael C Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Common Law ◽  
Constitutional Court ◽  
High Court ◽  
Personality Rights ◽  
The Common ◽  
The Republic ◽  
Made In

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

3. The relations of international and national law

2019 ◽  
pp. 45-102
Author(s):  
James Crawford
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
The Common ◽  
International Systems ◽  
The Relationship ◽  
Flexible Instruments

This chapter explores the relationship between international and national law, discussing both the common law tradition and the civil law tradition. It suggests that each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally? The second factor is the difficulty of proving particular rules of international law. Third, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters.

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